TOPIC 10 EASEMENTS FEEDBACK TO ONLINE ACTIVITY ACTIVITY 10.1 REVIEW CASE LAW Using your research skills, locate and read Stolyar v Towers [2018] NSWCA 6. This decision is a good example of the type of dispute that can arise over easements in residential areas. It also deals with some fundamental aspects of easements. In particular, paras [39]-[55] which discusses the validity of easements were significant rights are granted to dominant tenement, like those of parking. Then answer the following questions: 1. Which parties were servient and dominant tenements; what rights were granted under the easement, and why was the easement created? Hint, read paras [4]-[12] and look at the plan and aerial view in Schedules 1 and 2 at the end of the judgment. 2. What were the Stolyars' grounds for appeal? Hint, see para [16]. 3. The trial judge noted that the Stolyars' ability to use the easement area was 'significantly reduced'. However, what did his honour find that they could still do, which led to his conclusion that the easement was nevertheless valid? Hint, see para [26]. Did the Court of Appeal agree? Hint, see para [70]. 4. Read paras [74]-[77]. According to the court, should the validity of an easement be determined at the time of grant, or the date of application for relief? FEEDBACK . The Towers were the dominant tenement and the Stolyars were the servient tenement. The Towers' property had no room for a garage. Therefore, the Stolyars granted them an easement over a strip of their property allowing the Towers to 'keep erected' a single garage, park in this garage and in a space immediately in front of the garage. . The Stolyars argued that the easements was not valid; that the rights conferred by the easements were so extensive as to amount to joint occupation of that part of the servient tenement; and that the Towers should be restrained from parking on the easement. . The trial judge noted that the servient owner could not be excluded from the easement area, that parts of the garage were available for storage, and that the servient owner retained their rights to 'build structures upon, under or over the Easement area', and could place a satellite dish or solar panels for example on the existing garage. The Court of Appeal agreed with the trial judge that for this reason, the easement did not amount to a joint occupation by the dominant tenement, and that the easement was therefore valid. . The Court does not finally decide whether the validity of easements should be decided at the time of grant or the time of application for relief, but prefers the view that it would be at the time of grant [75] 'The Stolyars' preferred approach [ ... ] seems inconsistent with authority .. '.
2 ACTIVITY 10.2 Look back at Question 1.1 from the first topic, about Cranecorp wishing to use the airspace above a neighbouring property. We determined that without the consent of that neighbour,